Media are not an arm of the police, Vice lawyer tells Supreme Court hearing

Ben Makuch challenges Ontario Court of Appeal ruling that he must give materials for stories to RCMP

Journalists are not an investigative arm of the police, a lawyer representing Vice Media told the Supreme Court of Canada in arguing there should be clear protections for the media when enforcement agencies come knocking.

Counsel Philip Tunley said Wednesday the result of current law and practice is “a chilling effect” on the media’s important role in gathering and publishing news in Canada.

Vice Media reporter Ben Makuch is challenging an Ontario Court of Appeal ruling that he must give the RCMP the background materials he used for stories on an accused terrorist.

In 2014, Makuch wrote three articles about the involvement of Farah Shirdon, formerly of Calgary, with the Islamic State of Iraq and the Levant.

Shirdon had left Canada for Turkey in March 2014. A month later, he appeared in an ISIL propaganda video that turned up on the internet. He tore up his Canadian passport, threw it into a fire and said, ”with help from Allah, we are coming to slaughter you.”

Makuch’s articles were largely based on exchanges he had with Shirdon through a text messaging service.

In 2015, the RCMP obtained a production order under the Criminal Code, directing Vice Media and Makuch to provide documents and data relating to communications with Shirdon, who may now be dead.

Makuch brought an application to quash the production order, but it was dismissed — a decision upheld by the Court of Appeal.

The Supreme Court agreed to hear Makuch’s case, which squarely pits press freedoms against the investigative powers of police.

In a previous case, the court set out nine conditions for assessing the reasonableness of a search of a media outlet.

Vice Media argues that lower courts have been misapplying, or failing to apply, the balancing test.

Rather than give careful consideration to media interests, courts give short shrift to “the pernicious effects” of warrants and production orders on the media’s ability to gather or report the news, Vice says in its written submission to the high court.

Tunley said Wednesday the production order for Makuch’s materials should be tossed out, noting the possibility of Shirdon facing a criminal trial is remote.

“It’s massively overbroad, it was and is premature, and other, less intrusive measures could — however many years ago — have been put in place to preserve the status quo until there was some prospect of a trial.”

Lawyers for Vice and the Crown faced a barrage of questions from the panel of justices.

Justice Michael Moldaver took exception to Tunley’s suggestion that Vice was being asked “to hand over the entire fruits” of a lengthy investigation, creating an impression the media are “an adjunct of the police.”

“It’s on the basis that it will provide evidence of a crime, or the likely commission of a crime,” Moldaver said. “You can’t just say ‘hand over.’ The police have to do a lot more than that.”

Vice Media wants journalistic outlets to consistently have an opportunity, at an early stage, to make arguments before a judge decides whether to approve a production order.

Federal lawyer Croft Michaelson told the hearing there is “no merit” to criticisms of the robust legal framework in place for deciding access to media materials.

In its written arguments, the Crown says the test “is a principled and flexible framework” intended to curb any potential “chilling effect” that an order might have on the ability of the media to do its work.

“Contrary to the appellants’ submissions, the courts have not been acting as ‘rubber stamps,’ favouring the interests of law enforcement at the expense of freedom of expression.”

After the hearing, Makuch said he has never gotten a sense of why the Mounties want his information. “I think it’s a complete fishing expedition.”

Iain MacKinnon, Tunley’s co-counsel, said following the session that the high court justices would, at the very least, “clarify the law in a very murky area.”

Jim Bronskill , The Canadian Press

Like us on Facebook and follow us on Twitter.

Just Posted

Update: 27 fires burning in Monashee Complex

Mabel Creek, Sugar Mountain and Harris Creek fires continue to burn near Lumby and Cherryville

Updated: RCMP no longer suspect death of Vernon woman is suspicious

West Kelowna RCMP continue to investigate the woman’s sudden death

Urgent need for Kelowna, Vernon blood donors

Okanagan blood shortfall part of nation-wide challenge

Falkland director seeks ambulance

Rene Talbot feels community between Vernon and Kamloops should have ambulance

Child dies in boating accident on Kal Lake

UPDATE: 9:50 p.m. A six-year-old is dead following a boating incident on… Continue reading

A first-hand look at hazards facing scooter users

A Salmon Arm reporter tags along on a mobility scooter tour of the city to learn about safety hazards

RCMP to search for body after man drowns in B.C.’s Buntzen Lake

Officers and fire crews responded but the man from the Lower Mainland is believed to have drowned.

Man found not guilty in 2011 drug-related shooting in Shuswap

Judge rules Jeremy Davis couldn’t foresee his companion would kill 24-year-old Nick Larsen.

Police chiefs call for stricter controls on pill presses to fight opioids

Canada’s police chiefs are urging Ottawa to beef up its fight against the opioid scourge by closely vetting people who import pill presses

Hot, dry conditions forces drought rating to highest level on Vancouver Island

The province says Vancouver Island is under Stage 4 drought conditions

Victoria police say explicit calls continue to target women

Over 50 reports of unwanted, sexually explicit calls have come in

Parks Canada has ‘general concept’ in mind for South Okanagan-Similkameen

Minister Catherine McKenna will be providing a further update to representatives in Penticton Friday, August 17

‘It’s like a party in your mouth’

B.C. creator’s Milkshake Burger makes its debut at the PNE

Most Read